Protection of Sources
Becker v. Norway
Closed Expands Expression
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The Supreme Court of Norway found unanimously for broad protection against exposure of journalistic sources even in the context of a government anti-terror investigation. Norwegian filmmaker Ulrik Imtiaz Rolfsen was making a documentary on Islamist extremism which featured a Norwegian citizen who was under the surveillance by the Police Security Service of Norway (PST) and was later arrested and charged for attempting to join ISIS in Syria. PST subsequently searched and seized Rolfsen’s film concerning the terror suspect. The first instance and appeals court upheld the petition to maintain the seizure of the recording on the ground that the specific circumstances of the case, particularly the public interest in national security, created an exception from the protection of sources. The Supreme Court of Norway, however, set aside the seizure order. It found that the content of the film recording did not amount to an exception under Section 125 of the Criminal Procedure because it was not of “vital significance” to the ongoing investigation against the terror suspect. Additionally, the Court assessed the interest in protection of sources against the interest of public in prevention of serious crimes in accordance with Article 10 of the European Convention on Human Rights. It found that Rolfsen’s documentary was “at the heart of investigative journalism,” and that effective protection of his sources was vital in creating the film. On the other hand, the Court found that PST had other investigative methods at its disposal and it was not clear how necessary the recording was for the anti-terror investigation.
In April 2015, the PST initiated a covert investigation on a number of Norwegian citizens suspected of supporting ISIS in Syria, including the recruitment of foreign fighters. The investigation in part concerned an individual who allegedly participated as anonymous interviewee in a documentary filmed by Ulrik Imtiaz Rolfsen. The film was primarily concerned Islamist extremism and the recruitment of foreign fighters by ISIS. On June 07, 2015, PST arrested the terror suspect as he was attempting to board a plane to Syria. Upon the arrest, PST conducted surveillance of a communication between another terror suspect who facilitated the travel and Rolfsen’s film photographer. The conversation subsequently led PST to believe that Rolfsen’s studio may contain significant evidence concerning the detained terror suspect. On June 08, 2015, PST conducted a search and seized memory sticks, a hard disc and all of the film recordings related to the suspect, consisting of six to eight hours of recording. The seizure was done pursuant to Section 197 of the Norwegian Criminal Procedure, which provides access to editorial premises without a court order when further delay would likely to impair an ongoing investigation.
On June 09, 2015, PST made a request to the Oslo District Court to maintain the seizure of the recording. While the court held that Rolfsen as a journalist was entitled to invoke Section 125 of the Criminal Procedure to protect the disclosure of his sources, it found that the seized recording “solely concern[ed] sources known to PST” and therefore, Section 125 was not applicable. The court also ruled that Article 10 of European Convention on Human Rights on the right to freedom of expression does not protect unpublished material that does not identify unknown sources.
On June 17, 2015, the Borgarting Court of Appeal affirmed the judgment. After reviewing most of the seized material, the court was of the opinion that a number of film sequences contained unidentified persons and as a result, the seizure could reveal their identity. It, however, concluded that “subject to significant doubt,” the specific circumstances of the case justified an exception from the protection of sources under Section 125.
Rolfsen then appealed the decision to the Supreme Court of Norway with the Association of Norwegian Editors intervening as a third party.
Justice Ringnes delivered the unanimous opinion of the Supreme Court.
The main question before the Court was whether the seizure of Rolfsen’s film recording should be upheld in light of Section 125 of the Norwegian Criminal Procedure and Article 10 of the European Convention on Human Rights.
The government argued that the Court of Appeal properly examined the material in accordance with Section 125 and the relevant guidelines given by the European Court of Human Rights. According to the government, the recording contained “very important clues” for PST in fighting against terrorism, thereby satisfying the third paragraph of Section 125, which permits disclosure of a source “due to important public interests and the information is of vital significance to the clarification of the case.” [para. 60] It also argued that the recording included unknown sources of information to which Section 125 does not apply. Lastly, the government added that the purpose of the search was not to reveal the sources obtained by Rolfsen and that the seizure was specific and concentrated.
The Court first discussed the relevant standards. It reiterated that Section 125 “solely gives the right to refuse the issue and seizure of journalist material if it can directly or indirectly reveal the sources used by the journalist.” [para. 53] However, “a journalist cannot refuse to make a statement concerning the contact with a source who was publicly known after the source himself or herself has come forward.” The Court was also inclined to agree with the notion that a journalist is not entitled to protection when the identify of his or her source was established “on another basis, without a reasonable doubt.” This ruling has yet to be addressed by the European Court of Human Rights.
As to the applicability of Article 10 of the European Convention, the Court stated that the European Court of Human Rights “sets up broad protection for unpublished material that may reveal unidentified sources.” [para. 78] It specifically referred to the case of Nordisk Film & TV A/S v. Denmark, Application No. 40485 (2002), which concerned the protection of a person’s identity who was filmed without his knowledge and therefore, did not appear as a source in the film recording. The European Court ruled that even though the material did not contain details of sources and that the identity of the person was known to the police, “the actual duty of disclosure could have a ‘chilling effect’ for the freedom of press.” [para. 57].
In applying the above standards to the present case, the Court first assessed whether Rolfsen’s film recording fell within the protection of Section 125 of the Criminal Procedure and whether the government was justified in maintaining the seizure in accordance with the third paragraph of the section. It found that”important public interests” entitled the prosecuting authority to have access to the material because “the police investigation of recruitment for and participation in terror organizations is necessary in order to ensure the security of society and to prevent vulnerable young people from becoming involved in acts of war.” [para. 61] The Court, however, did not find sufficient evidence indicating that the seized material was “of vital significance to PST’s investigation, partly based on the Court of Appeal’s doubt as to “how much PST will get out of the film recording.” As such, the Court held that seized material did not fall within an exception under Section 125, namely its third paragraph.
The Court then proceeded with weighing various interests at stake in the present case in accordance with Article 10 of the European Convention. As a general principle, “protection of sources can only be waived if there is ‘an overriding requirement in the public interest.’” [para. 67] More specifically, “if the information given by the source is of importance to the public interest, the protection of sources is ‘to a large extent absolute.” But “if the case concerns serious crime, there can be reason to make an exemption from the protection of sources.” [para. 67] Here, the Supreme Court described Rolfsen’s documentary “at the heart of investigative journalism,” as it gives insight into the ISIS terror network, particularly how the group recruits Norwegian citizens to go to war in Syria. And the only way this project was possible was through the trust the filmmaker had with his sources. Accordingly, the Court was of the opinion that effective protection of his sources was “vital” to creating the documentary. On the other hand, it noted that PST had other investigative methods at its disposal and it was unclear how necessary the information in the film recording was to the ongoing investigation.
Based on the foregoing analysis, the Supreme Court of Norway reversed the Court of Appeal’s ruling and ordered the seizure of the material to be set aside.
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This is a decision by the Supreme Court in Norway, therefore binding all lower courts in the country.
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